Surfers Views South [2000] QBCCMCmr 38 (31 January 2000)

P J HANLYREFERENCE: 0600-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24128
Name of Scheme:	Surfers Views South
Address of Scheme:	C/- PO Box 7972 GOLD COAST MAIL CENTRE QLD 9726

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Reinhard Meyer, the past owner of the management rights in Surfers View South CTS 24128

P J HANLYI hereby order that the application for an order that the body corporate acted unlawfully in failing to accept that there was hardship in terms of section 85(6)(b) of the Standard Module of Regulations (sic) and by imposing a transfer on the consent to transfer the service contract and letting authorisation, is dismissed.

I further order that the application for an order that the body corporate make a refund to the applicant of the sum of $2116.84 presently owing to the (applicant) manager (as salary for the period 6/5/99 to 31/5/99) under the agreements, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0600-1999

“Surfers Views South” CTS 24128

The applicant Reinhard Meyer, the past owner of the management rights for Surfers View South CTS 24128, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
P J HANLYThat the body corporate acted unlawfully in failing to accept that there was hardship in terms of section 85(6)(b) of the Standard Module of Regulations (sic) and by imposing a transfer on the consent to transfer the service contract and letting authorisation.

That the body corporate make a refund to the applicant of the sum of $2116.84 presently owing to the (applicant) manager (as salary for the period 6/5/99 to 31/5/99) under the agreements.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant contends that the sale of the management rights was based on an unforeseeable and genuine case of hardship, and requests that the transfer fee, which the body corporate could otherwise charge, be waived.

The solicitors for the body corporate contend that the applicant is estopped from making such an application, as he has accepted an earlier settlement offer from the body corporate in respect of the very matter to which this application relates.

Section 182 of the Body Corporate and Community Management Act 1997 (“the Act”) defines a dispute as follows:

182. In this chapter—

“dispute” means a dispute between—

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a service contractor for the scheme who is also a letting agent for the scheme; or

(e) the body corporate for a community titles scheme and a letting agent for the scheme.

“occupier”, of a lot, means a person in the person’s capacity as the occupier of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

“owner”, of a lot, means a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

Section 192 of the Act sets out the requirements for an application to resolve a dispute. That section provides that an application for an order of an Adjudicator-

a) must be made by a person (including, if appropriate, the body corporate for a community titles scheme) who is a party to, or is directly concerned with, a dispute for which an adjudicator may make an order under this chapter; and

b) must be made in writing to the commissioner; and

c) must state the nature of the order sought; and

d) must state the name and address of each person against whom the order is sought (the “affected person”) or who would, if the order were made, be affected by the order (also the “affected person”); and

e) must state in detail the grounds on which the order is sought; and

f) must be accompanied by the fee prescribed under a regulation.

(emphasis added)

At the date of application, the applicant was no longer the resident manager of Surfers View South. The assignment of the management rights had been completed, with settlement having been effected on 31 May, 1999. I therefore consider that I do not have jurisdiction to make the order which the applicant is seeking (section 220(2)(a) of the Act), for the reason that, at the date of the application, the applicant was no longer the resident manager and does not therefore fall within that category of parties defined in section 182 of the Act.

In making this determination, I have had regard to the decision of Dowsett J in Suncorp Insurance and Finance–v-Retail Shop Lease Tribunal[1995]2Qd R 429, wherein his Honour held that a mediator and therefore a Retail Shop Lease Tribunal had no jurisdiction under the relevant Act to determine a dispute between persons who, at the time of reference of the dispute to the mediator, had been but were no longer in the relationship of landlord and tenant under a retail shop lease. His Honour held that the description of a person as a “landlord” or as a “tenant” (to which his Honour said that Ormiston J in Jam Factory Pty Ltd-v-Sunny Paradise Pty Ltd[1989]V.R.584 gave the meanings which those words normally have) implies that he or she currently has such status. His Honour further held that in the absence of words extending that meaning, one would not normally assume that the reference was to persons who had been landlords or tenants at some previous time. Earlier in his judgment, his Honour stated that if it were intended that the word ‘landlord’ include a person who previously had that capacity under a terminated lease, one would have expected the section to refer to a person who, “is or was previously” entitled to such rent.

As the applicant does not satisfy this threshhold requirement under section 182, it has not been necessary for me to turn my mind to the matter raised by the solicitors for the body corporate that the applicant is, in any event, estopped from making the application because he has earlier accepted a settlement offer made by the body corporate.

I have dismissed the application.